92 Decision Citation: BVA 92-14421
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 89-28 608 ) DATE
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THE ISSUES
1. Entitlement to service connection for dementia as
secondary to service-connected bilateral hearing loss.
2. Entitlement to an evaluation in excess of 40 percent for
bilateral hearing loss.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
F. H. Ayer, Counsel
INTRODUCTION
The veteran had active military service from April 1942 to
October 1943.
This case came before the Board of Veterans' Appeals,
hereinafter the Board, on appeal from a March 1989 rating
determination of the Buffalo, New York, Regional Office.
The notice of disagreement was received in March 1989. The
statement of the case was issued in May 1989. The
substantive appeal was received in August 1989. The appeal
was received at the Board in September 1989 and docketed in
October 1989. The claims file was then referred to the
veteran's accredited representative, Paralyzed Veterans of
America, Inc., and that organization presented additional
written argument to the Board in December 1989.
In a decision of the Board dated in March 1990, the case was
remanded to the regional office for additional development.
A supplemental statement of the case was issued in October
1991. The appeal was received and docketed at the Board in
February 1992. The claims file was then referred to the
veteran's accredited representative, Paralyzed Veterans of
America, Inc., and that organization presented additional
written argument to the Board in February 1992. The case is
now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection is warranted
for dementia because it resulted from his service-connected
defective hearing. The veteran alleges that the loss of
hearing made him depressed and reclusive and that caused him
to abuse alcohol. He points out that, as his hearing grew
worse, his mental state grew worse also.
It is also contended that a higher evaluation is warranted
for the veteran's hearing loss because his hearing has
gotten worse over the years.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the veteran's claim for service
connection for dementia as secondary to service-connected
hearing loss is not well grounded and that the preponderance
of the evidence is against the claim for a higher evaluation
for defective hearing.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's claim has been obtained,
insofar as possible.
2. The veteran has submitted no objective evidence showing
a correlation between his service-connected hearing loss and
the onset of dementia.
3. The veteran is currently unable to be tested for
defective hearing due to his dementia.
4. Audiology testing conducted in June 1979 shows the
veteran to have level V hearing bilaterally.
5. The veteran has been in receipt of a 40 percent
evaluation for hearing loss for a continuous period of over
20 years.
CONCLUSIONS OF LAW
1. The veteran has not submitted a well-grounded claim for
service connection for dementia as secondary to
service-connected bilateral hearing loss. 38 U.S.C.
§ 5107(a) (1992); 38 C.F.R. § 3.310(a) (1991).
2. The criteria for an evaluation in excess of 40 percent
for bilateral hearing loss are not met. 38 U.S.C. §§ 1155,
5107(a) (1992); 38 C.F.R. §§ 3.321(b)(1), 3.951, 4.85 and
Part 4, Codes 6100-6110, 6102 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The threshold question to be answered in this case with
respect to issue 1 is whether the veteran has presented a
well-grounded claim; that is, one which is plausible. We
find that the veteran's claim is not well grounded. The
veteran's dementia is first shown around 1981 and it has
continued unabated since that time. The clinical records
are replete with findings that the dementia was caused by
alcohol abuse. Although the veteran claims that his hearing
loss made him abuse alcohol, there is no additional evidence
of record which establishes such a correlation. In order to
establish service connection for dementia on a secondary
basis, it would have to be shown that that disability was
proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a). Although the
veteran contends there is such a correlation, in the absence
of any other evidence which would support this premise, we
find his allegations are not credible. Therefore, based on
the facts of this case, we conclude that the veteran has not
met the initial burden of presenting evidence of a
well-grounded claim imposed by 38 U.S.C. § 5107(a).
II. Bilateral Hearing Loss
The veteran's claim as to issue 2 is well grounded within
the meaning of 38 U.S.C. § 5107(a). That is, we find that
he has presented a claim which is plausible. We are also
satisfied that all relevant evidence has been obtained
insofar as possible. The case was previously remanded by
the Board to ascertain whether a current audiology
examination could be obtained but a certification was
received from medical authorities that such an examination
could not be performed due to the severity of the veteran's
dementia. Therefore, no additional assistance is required
to comply with the duty to assist him mandated by 38 U.S.C.
§ 5107(a).
Disability evaluations are determined by the application of
a schedule of ratings which is based on average impairment
of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various
disabilities. The veteran was discharged from service on a
certificate of disability due to bilateral defective
hearing. The veteran's hearing loss was rated 50 percent
disabling from date of discharge, 40 percent from November
1949, 50 percent from September 1951 and 40 percent from
July 1960. Hearing aids were reportedly first issued to him
in 1947 and 1948. The veteran is currently in receipt of a
40 percent evaluation for bilateral hearing loss and he has
been in receipt of such an evaluation continuously for more
than 20 years. Therefore, his 40 percent evaluation is
protected pursuant to 38 C.F.R. § 3.951. Effective
December 18, 1987, the rating criteria for defective hearing
were changed. Evaluations of bilateral defective hearing
now range from noncompensable to 100 percent based on
organic impairment of hearing acuity as measured by the
results of controlled speech discrimination tests together
with the average hearing threshold level as measured by pure
tone audiometry tests in the frequencies 1,000, 2,000,
3,000 and 4,000 cycles per second. To evaluate the degree
of disability from bilateral service-connected defective
hearing, the revised rating schedule establishes 11 auditory
acuity levels designated from level I for essentially normal
acuity through level XI for profound deafness. 38 C.F.R.
§ 4.85 and Part 4, Codes 6100 to 6110. A 20 percent rating
is assigned for bilateral defective hearing where the pure
tone threshold average in one ear is 87 decibels with speech
recognition ability of 80 percent correct, (level V), and,
in the other ear, the pure tone threshold average is
84 decibels, with speech recognition ability of 80 percent
correct, (level V). 38 C.F.R. § 4.85 and Part 4,
Code 6102. The above results were obtained on audiology
testing of the veteran in June 1979 and those test results,
and extrapolations thereof, represent the most recently
available evidence as to the current state of the veteran's
hearing loss. As previously noted, additional testing has
not been conducted due to the veteran's dementia.
Accordingly, a higher evaluation is not warranted at this
time.
Consideration has also been given to the potential
application of the various provisions of 38 C.F.R. Parts 3
and 4, whether or not they were raised by the veteran, as
required by Schafrath v. Derwinski, U.S. Vet. App.
No. 89-114 (November 26, 1991). In particular, the evidence
does not suggest that the hearing loss presents such an
exceptional or unusual disability picture as to render
impractical the application of the regular schedular
standards, so as to warrant the assignment of an
extraschedular evaluation under 38 C.F.R. § 3.321(b)(1).
Significantly, the disability has not required frequent
periods of hospitalization, nor does it present marked
interference with employment.
ORDER
The veteran has not submitted a well-grounded claim for
service connection for dementia as secondary to
service-connected bilateral hearing loss. Therefore, the
claim as to this issue is denied.
An evaluation in excess of 40 percent for bilateral hearing
loss is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
HARRY M. McALLISTER, M.D.
J. U. JOHNSON
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.